from gender apartheid to non-sexism: the pursuit of women

NORTH CAROLINA JOURNAL OF NORTH CAROLINA JOURNAL OF

INTERNATIONAL LAW INTERNATIONAL LAW

Volume 26 Number 3 Article 2

Summer 2001

From Gender Apartheid to Non-Sexism: The Pursuit of Women's From Gender Apartheid to Non-Sexism: The Pursuit of Women's

Rights in South Africa Rights in South Africa

Penelope E. Andrews

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From Gender Apartheid to Non-Sexism: The Pursuit of Women's Rights in South From Gender Apartheid to Non-Sexism: The Pursuit of Women's Rights in South Africa Africa

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From Gender Apartheid to Non-Sexism:The Pursuit of Women's Rights in South Africa

Penelope E. Andrews*

I. Introduction

This article discusses the quest for women's rights in SouthAfrica and how the transition from apartheid to democracy led to acommitment to gender equality as incorporated in South Africa'stransitional and final Constitutions.' In this endeavor, it refers tothe organizational attempts by women prior to and during theconstitutional drafting process to ensure that the new Constitutionembodied the aspirations and reflected the struggles for women'srights by women activists in South Africa. This article is dividedinto six sections. Section Two describes the legacy of apartheid forall women in South Africa.' This investigation is appropriatebecause the legacy of apartheid will bear significantly on the statusand lives of women for a long time. This section shows how thelaws and policies of apartheid were comprehensive, not only in

* Professor of Law, City University of New York School of Law. B.A., L.L.B.,

University of Natal; L.L.M., Columbia University. The author would like to thank theNorth Carolina Journal of International Law and Commercial Regulation for organizingthe symposium honoring the work of Professor Kenneth Broun. She would also like tothank Dean Gene Nichol and the Faculty of the University of North Carolina School ofLaw for their gracious hospitality. In addition, she would like to extend special thanks toSue Chang for secretarial assistance.

South Africa's constitutional negotiations involved a two-stage process. The firststage was the negotiation process that preceded South Africa's first democratic electionsin May 1994, leading to the interim Constitution. For an account of the negotiations, seegenerally The Small Miracle, South Africa's Negotiated Settlement, 7 S. AFR. REV. I(1994) (analyzing race relations, the African National Congress (ANC), and politics andgovernance in the period from 1989 to 1994, and making predictions for the years after1994). The second stage was the writing of the final Constitution by a duly electedConstitutional Assembly; this stage was completed in 1996 and certified by theConstitutional Court that same year. For a detailed account of the constitution-makingprocess in South Africa, see generally HASSEN EBRAHIM, THE SOUL OF A NATION:

CONSTITUTION-MAKING IN SOUTH AFRICA (1998). This paper focuses only on theprovisions in the final Constitution.

I See infra notes 10-35 and accompanying text.

N.C. J. INT'L L. & COM. REG.

enforcing rigid racial segregation, but also in racializing gender.'Section Three focuses on the Constitution and outlines the myriadof ways this document details comprehensive rights for womenboth in the public and the private spheres.4 This sectiondemonstrates how the South African Constitution, in particular itssection on equality, has been described as one of the mostimpressive human rights documents of the twentieth centurySpecifically, the Constitution details rights expansively andcomprehensively, while its inclusion of sweeping rights forwomen satisfies South Africa's international legal obligations.Section Four of this article focuses on two cases regardingwomen's rights decided by the Constitutional Court, arguing thatSouth Africa's evolving constitutional jurisprudence demonstratesa deep commitment by the highest courts to eradicate odiousdiscrimination against women.6 Section Five analyzes the lobbyingefforts of women's organizations during the transitional period toensure that women's rights were incorporated into the newConstitution.7 In addition, this section analyzes how theselobbying efforts resulted in significant formal gains as reflected inthe Constitution This article concludes by assessing some of theremaining obstacles to attaining women's equality despite thesignificant advancements made thus far.9

II. The Legacy of Apartheid for Women

The system of apartheid existing in South Africa since 1948and the previous periods of colonialism left all South Africanwomen in a subordinated position.' This position of subordinationwas determined in part by the racial status of women in South

3 See infra notes 10-35 and accompanying text.4 See infra notes 36-67 and accompanying text.



I See discussion infra Section VI.10 Fatima Meer, Women in the Apartheid Society, in THE STRUGGLE FOR

LIBERATION IN SOUTH AFRICA AND INTERNATIONAL SOLIDARITY 169, 173-81 (E.S. Reddyed., 1992).

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FROM GENDER APARTHEID TO NON-SEXISM

Africa's peculiar racial hierarchy." African women, who occupiedthe lowest place in this hierarchy, were in the most disadvantagedposition. Indian and Coloured women fared only slightly better,and white women, as members of the most favored racial group inthe apartheid racial hierarchy, were in the most advantageousposition.' 2 This did not mean, however, that white women escapedthe panoply of disadvantages and discrimination suffered by allwomen in a patriarchal society like South Africa. In this respect,Justice Albie Sachs of the Constitutional Court, one of SouthAfrica's most eminent legal jurists, has referred to patriarchy asbeing "the only truly non-racial institution in South Africa."' 3

African women were left in a particularly bereft state; for themapartheid meant separation from spouses, and for their children itmeant absent fathers. For African women apartheid also signifiedthe entrenched denial of a host of rights, including one of the mostfundamental of rights-the right to travel freely to seek gainfulemployment.'4 The migrant labor system, also known as thesystem of influx control, locked women into a spiral ofdispossession and disadvantage.' 5 This system, authorized by theBlack Urban Area Consolidation Act and a few other pieces oflegislation, operated to allocate rights to Africans in the mostpusillanimous manner.'6 The rights articulated in Section 10, the

1 The Population Registration Act of 1959, repealed in 1991, classified SouthAfricans into four broad racial groups, namely white, Coloured, Indian, and African,with different sub-groups in each of the non-white categories. See generally Rene deVilliers, Afrikaner Nationalism, in 2 THE OXFORD HISTORY OF SOUTH AFRICA 365(Monica Wilson & Leonard Thompson eds., 1971).

12 For a comprehensive discussion of the legacy of apartheid and the impact this

hierarchy had on women, see Penelope E. Andrews, The Stepchild of NationalLiberation: Women and Rights in the Post-Apartheid South Africa, in THE POST-APARTHEID CONSTITUTIONS: PERSPECTIVES ON SOUTH AFRICA'S BASIC LAW (Penelope E.Andrews & Stephen Ellmann eds.) (forthcoming).

13 Albert Sachs, Judges and Gender: The Constitutional Rights of Women in aPost-Apartheid South Africa, 7 AGENDA 1 (1990) (suggesting ways to overcomestructural inequality based on culture and laws).

"4 ALFRED MOLEAH, SOUTH AFRICA: COLONIALISM, APARTHEID AND AFRICAN

DISPOSSESSION 466-70 (1993). It has been pointed out that the economic marginalizationof black people in South Africa, created by the migrant labor system, has resulted inAfrican women bearing the brunt of such marginalization. id.

15 Id.16 Black Urban Area Consolidation Act 25 of 1945 (repealed 1984).

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centerpiece of the legislation, provided extremely limitedconditions under which people could move or remain in the areasdesignated as white." This denial of the freedom to move and toobtain work locked women into a cycle of dependency in whichtheir livelihood depended on absent husbands and, sometimes, onabsent sons, who sent meager amounts earned in the city for theupkeep of spouses, parents, and children.'8 This systematizeddependency, even at present, has the potential to thwart theeconomic and social advancement of women for generations tocome.

This systematic separation of children from their fathers andwives from their husbands created social and psychologicalconditions which have yet to be explored in South Africa. TheTruth and Reconciliation Commission assessed the psychologicaland physical trauma flowing from exposure to gross violations ofhuman rights.'9 The forced separation of families arguablyconstituted a continuing violation of human rights, theconsequences of which deserve particular attention today. Thesystem of migrant labor rendered women, sometimes voluntary,but often involuntary, parties to polygamous marriages." Men hadseparate wives and families simultaneously in the cities and in therural areas.2' This situation created uncertainty and insecurity forwomen and perpetuated the subordination of women, who wereseen as appendages of men, and, in fact, relied entirely on men fortheir well-being." Moreover, because South African law did not

17 These issues are explored in comprehensive detail by Justice Moloto in thisvolume. Judge Justice Moloto, South African Legal Reform After April 1994, 26 N.C. J.INT'L L. & COM. REG. 653 (2001).

18 Any visitor to the rural areas of South Africa during the apartheid years wouldhave been struck by the absence of young men. The rural areas housed the "superfluous"people of South Africa: the old, the young, and the women. This absence of able-bodiedmen reflected a rather Kafkaesque policy, the program of the apartheid government toensure "whiteness" in South Africa's urban areas. See INTERNATIONAL DEFENSE AND AIDFUND, APARTHEID: THE FACTS 17 (1983).

19 See 5 TRUTH AND RECONCILIATION COMMISSION OF SOUTH AFRICA REPORT 125-69 (Susan de Villiers ed., 1998).

20 See generally Meer, supra note 10.

21 Id. Polygamy, which was allowed in customary legal regimes, pre-dated the

system of influx control. It is arguable, however, that the forced separation of womenand men encouraged multiple unions.

22 Id.

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recognize customary marriages, women in these unions weredenied legal protection, and their children were deemedillegitimate.23

This system of dependency generated by apartheid law andpolicy was reinforced by a traditional system of law and culturethat placed women under the perpetual tutelage of men.2" Undertraditional law and culture, women were denied a host of rights:the right to own land, the right to custody of their children, and theright to be chief or elected as chief.25 These laws and policies,bolstered by an apartheid ideology that insisted on the second-class status of women within African society, cemented theirinferior status; this legacy will continue to haunt women for manygenerations.26

Coloured and Indian women were excluded from the migrantlabor system and allowed to move freely to secure employmentopportunities. 2 They also labored, however, under the apartheidsystem's racial allocation of resources and the panoply ofdisadvantages engendered by apartheid.28 Coloured and Indianwomen continue to exist in abject conditions of poverty eventoday. 9

In the private sphere, white women were subjected to highlypatriarchal and sexist attitudes within their own communities.South Africa's particular brand of masculinity, bolstered by aCalvinist religious ideology and a militarist white state, had a

23 Id.

24 Id.

25 Penelope Andrews, Striking the Rock: Confronting Gender Equality in South

Africa, 3 MICH. J. RACE& L. 307, 323-27 (1998).26 Martin Chanock, Law, State and Culture: Thinking About "Customary Law"

After Apartheid, 1991 ACTA JURIDICA 52, 64-70 (1991).27 HILDA BERNSTEIN, FOR THEIR TRIUMPH AND THEIR TEARS: WOMEN IN

APARTHEID SOUTH AFRICA 11-13 (1985).28 See CHERRYL WALKER, WOMEN AND RESISTANCE IN SOUTH AFRICA 5-7 (1982).

29 See generally DON PINNOCK, THE BROTHERHOOD: STREET GANGS AND STATE

CONTROL IN CAPETOWN (1984). The Cape Flats, a large area outside of Capetown,allocated specifically for residence of Coloured and African people, are the mostdesolate and poverty-stricken areas of Capetown. Id. In addition, much of the Cape Flatsdesignated as Coloured is wracked by gang violence, disproportionate unemploymentrates compared to the rest of Capetown, horrendous statistics of crimes against women,and lawlessness, all of which appear immutable. Id.

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particularly pernicious effect on white women, who wereconscripted into the maintenance of apartheid from which theycould benefit as non-whites, but not necessarily as women.3"

The system of racialized sexual subordination under apartheid,and the violence to which women were subjected as a result, onlybegan to emerge as an issue of national concern during the dyingdays of apartheid.3 This was so because during the apartheidyears, all women were considered second-class citizens.32 Thatsecond-class status, however, was mediated by the apartheidideology that allowed status in the racial hierarchy to becompromised by the sexist underpinnings of the whole society.33

One could argue that for white women, their subordinated status aswomen was compensated by their status as the most favored groupin the racial hierarchy. The literature on women's status in SouthAfrica during the apartheid years focused largely on the status ofblack women, specifically those of African descent.34 Scholarshipon the status of white women under apartheid was lacking. At thedawn of South Africa's democracy, however, despite theirexperiential contradictions, South African women convergedaround the need to protect their interests as women."

III. The South African Constitution and Gender Equality

The South African Constitution reflects a clear commitment tothe principle of non-sexism and to the attainment of genderequality. In the Founding Provision of Chapter 1, the Constitutionmakes clear that the South African state is founded on severalvalues, including "[h]uman dignity, the achievement of equality

30 See generally JACKLYN COCK, MAIDS AND MADAMS: DOMESTIC WORKERS

UNDER APARTHEID (1989) (discussing the dissonance between white women and theirblack female workers in the highly exploitative conditions of domestic labor).

31 See generally WALKER, supra note 28, at 5 (noting both the "sexual hierarchybetween male and female" and "the colour hierarchy of white over black").

32 Id. at 7. Under customary African law, "women were deemed perpetual minors,

always under the guardianship of their nearest male relative, regardless of their age." Id.

33 BERNSTEIN, supra note 27, at 28-30.

34 E.g., Meer, supra note 10. But see BERNSTEIN, supra note 27, at 82-83, 107-08(documenting the involvement of white women in the struggles of black women); seealso WALKER, supra note 28 (tracing the relations between white women's suffragegroups and the political and social struggles of black women's groups).

35 BERNSTEIN, supra note 27, at 88, 94-95.

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and the advancement of human rights and freedoms, [n]on-racialism, and non-sexism."36 The most important provisionsrelating to gender equality are found in the Bill of Rights,37

particularly Section 9, which outlines the preeminent principle ofequality." Section 9 contains a general commitment to equalitybefore the law and equal protection of the law, dictating that:"[t]he state may not unfairly discriminate directly or indirectlyagainst anyone on one or more grounds, including race, gender,sex, pregnancy, marital status, ethnic or social origin, colour,sexual orientation, age, disability, religion, conscience, belief,culture, language and birth."39

Section 9 also provides that "[n]o person may unfairlydiscriminate directly or indirectly against anyone on one or moregrounds" as listed above."0 The language used in this equalitysection is worth noting for several reasons. First, the prohibitionagainst discrimination on the several grounds listed suggests thatdiscrimination against women is just as constitutionally suspect asdiscrimination on the basis of race. Thus, the South AfricanConstitution provides a firmer ground for women than that foundin American constitutional jurisprudence, which subjects sexualdiscrimination to intermediate scrutiny and racial discrimination tostrict scrutiny.4' In other words, the South African Constitutionplaces sex or gender on the same footing as race for the purposesof eliminating discrimination. Second, the "prohibition on directand indirect discrimination implicitly acknowledges theinvidiousness and tenacity of institutionalized discrimination." 2

This acknowledgment reflects thoughtful arguments by feministand other critical scholars about the need to include a clearprohibition on indirect discrimination.4" Third, the inclusion of

36 S. AFR. CONST. ch. I, § I(a)(b).

37 Id. ch. II.38 Id. ch. II, § 9.

39 Id. ch. II, § 9(3).

40 Id. ch. II, § 9(4).

41 See Craig v. Boren, 429 U.S. 190, 197 (1976) (noting that gender classifications"must be substantially related to [the] achievement of those [governmental] objectives");Korematsu v. United States, 323 U.S. 214, 216 (1944) (stating that the "most rigidscrutiny" should be applied to racial classifications).

42 Andrews, supra note 25, at 328.

43 See, e.g., Margaret Thornton, The Indirection of Sex Discrimination, 12 U.

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both sex and gender as grounds for proscribing discrimination hasthe potential of protecting women from invidious discriminationbased not only on biological or physical attributes, but also onsocial or cultural stereotypes about the perceived role and status ofwomen. Section 37 of the Constitution, however, permitsemergency derogation from the constitutional protection ofequality with respect to gender, though not sex, and reflects acertain reticence on the part of the constitutional drafters to upsetprevailing stereotypes about the role and status of women."Fourth, in Section 9 the Constitution prohibits discrimination byprivate individuals and obliges the government to enact legislation"to prevent or prohibit unfair discrimination."45 Finally, theequality section also provides that discrimination on the groundslisted "is unfair unless it is established that the discrimination isfair."46

Of enormous potential value to women is the inclusion ofprotective measures, or affirmative action. Section 9 of theConstitution provides that "[e]quality includes the full and equalenjoyment of all rights and freedoms. To promote the achievementof equality, legislative and other measures designed to protect oradvance persons or categories of persons disadvantaged by unfairdiscrimination, may be taken."'" It is patently "clear that aconstitutional mandate for affirmative action is an importantweapon for tackling structural discrimination in a comprehensivemanner, as well as shielding affirmative action programs fromconstitutional challenges."4 This incorporation of affirmativeaction in the Constitution parallels South Africa's commitment togender equality as reflected by the government's ratification of theConvention on the Elimination of All Forms of Discriminationagainst Women (CEDAW).49 CEDAW provides that "[a]doption

TASMANIA L. REV. 88, 91-92 (1993).

44 S. AFR. CONST. ch. II, § 37. Derogation from the constitutional protection ofequality is not allowed "with respect to unfair discrimination solely on the grounds ofrace, colour, ethnic or social origin, sex, religion or language." Id.

45 Id. ch. II, § 9(4).46 Id. ch. II, § 9(5).

47 Id. ch. I1, § 9(2).48 Andrews, supra note 25, at 329.

49 G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc.A/34/830, A/34/L.61 (1979).

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by States Parties of temporary special measures aimed ataccelerating de facto equality between men and women shall notbe considered discrimination. . . . [T]hese measures shall bediscontinued when the objectives of equality of opportunity andtreatment have been achieved."5

The Constitution also provides that "[e]veryone has inherentdignity and the right to have their dignity respected andprotected."5 This provision has enormous potential for theprotection of women. One could plausibly argue that violenceagainst women in its many forms is clearly a violation of women'sdignity, and that the state's failure to take steps to prevent violenceagainst women is in contravention of the Constitution. Withrespect to the right of women to be free from violence, theConstitution provides that "[e]veryone has the right to freedomand security of the person which includes the right ... [t]o be freefrom all forms of violence from either public or private sources."52

This significant advancement has enormous potential toprotect women from violence both within the home as well asoutside the home. It is now recognized that women are more likelyto be subjected to violence from loved ones within the family thanfrom strangers. 3 This provision also coheres with feministagitation about the persistence of the public/private divide in law,and its deleterious impact on women. Feminist scholars havelong argued that the public/private distinction discriminatesagainst women and perpetuates violence against them.5

The goals of non-sexism are also found in other sections of theBill of Rights. Section 12, for example, provides that: "Everyonehas the right to bodily and psychological integrity, which includesthe right (a) to make decisions concerning reproduction; (b) tosecurity in and control over their body; and (c) not to be subjected

50 Id. pt. 1, art. 4(1).

I' S. AFR. CONST. ch. II, § 10.52 Id. ch. II, § 12(1)(c).

11 Rhonda Copelon, Intimate Terror: Understanding Domestic Violence as Torture,in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 116, 120(Rebecca J.Cook ed., 1994).

14 See Celina Romany, State Responsibility Goes Private: A Feminist Critique ofthe Public/Private Distinction in International Human Rights Law, in HUMAN RIGHTS OF

WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES, supra note 53, at 85.

55 See id.

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to medical or scientific experiment without their informedconsent. 5 6 These provisions have enormous potential to protectwomen with regard to personal choices about birth control andreproduction. The Constitution also protects freedom ofexpression, but only insofar as it does not involve "advocacy ofhatred that is based on race, ethnicity, gender or religion, and thatconstitutes incitement to cause harm.' 57

With respect to the enforcement of the rights listed in the Billof Rights, the Constitution comprehensively defines those whohave legal standing to sue and also lays the basis for class actionlitigation." This section states that any person listed in the Bill ofRights "has the right to approach a competent court" to seek reliefwhen "a right in the Bill of Rights has been infringed orthreatened. '59 The Bill of Rights also provides that relief may besought by:

(a) anyone acting in their own interest;(b) anyone acting on behalf of another person who cannot act intheir own name;(c) anyone acting as a member of, or in the interest of, a groupor class of persons;(d) anyone acting in the public interest; and(e) an association acting in the interest of its members.6°

In addition to the provision of substantive rights, theConstitution attempts to ensure that the courts and other tribunalsand forums interpret the rights in the Constitution in a way thatcomports with the Constitution's underlying ideals. TheConstitution specifically states that "when interpreting anylegislation and when developing the common law or customarylaw, every court, tribunal or forum must promote the spirit,purport and objects of the Bill of Rights."6' In addition, courts arealso required "to consider international law and may consider

56 S. AFR. CONST. ch. 1I, § 12(a).57 Id. ch. II, § 16(2)(c).58 Id. ch. fI, § 38.

59 Id.60 Id.

61 Id. ch. II, § 39(2).

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foreign law" when interpreting the Bill of Rights.62 TheConstitution also acknowledges rights or freedoms incorporated inlegislation, in common law, or in customary law; however, theserights may not contradict the values inherent in the Constitution.63

To abet the enforcement of women's rights in the Constitution andin pursuit of the goal of non-sexism, the Constitution provides fora Commission for Gender Equality to promote, educate, monitor,and lobby for gender equality.' The functions of the Commissionfor Gender Equality are set out clearly in Section 187, whichprovides that:

(1) The Commission for Gender Equality must promote respectfor gender equality and the protection, development andattainment of gender equality.

(2) The Commission for Gender Equality has the power, asregulated by national legislation, necessary to perform itsfunctions, including the power to monitor, investigate, research,educate, lobby, advise, and report on issues concerning genderequality.

(3) The Commission for Gender Equality has the additionalpowers and functions prescribed by national legislation.

The Constitution also provides for the establishment of the HumanRights Commission to promote and protect human rights.66 Inaddition, the Constitution provides for a Public Protector "toinvestigate any conduct in state affairs, or in the public ... [sectorthat is] suspected to be improper or to result in any impropriety or

62 Id. ch. II, § 39(1). These issues are explored in detail by Catherine Admay in this

volume. Catherine Adcock Admay, Constitutional Comity: Mediating the Rule of LawDivide, 26 N.C. J. INT'L L. & COM. REG. 723 (2001).

63 S. AFR. CONST. ch. II, § 39(3).

64 Id. ch. XI, § 187.65 Id. ch. XI, § 187(1)-(3).

66 Id. ch. XI, § 184. In Section 184, the Constitution provides the following

functions for the Human Rights Commission: "(a) [to] promote respect for human rightsand a culture of human rights; (b) [to] promote the protection, development andattainment of human rights; and (c) [to] monitor and assess the observance of humanrights in the Republic." Id. Most importantly, the Constitution provides that "[e]ach year,the Human Rights Commission must require relevant organs of state to provide theCommission with information on the measures that they have taken towards therealisation of the rights in the Bill of Rights concerning housing, health care, food, water,social security, education and the environment." Id. ch. XI, § 184(3).

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prejudice" and "to take appropriate remedial action. 67

The mandate of these commissions and the ConstitutionalCourt indicates that the Constitution has not only provided forsubstantive rights, but also for efficient enforcement mechanismswhich are required to enforce the spirit of the Constitution in itsdeliberations. The effective functioning of these commissions aswell as the courts, of course, is always predicated on stateresources and on the state's commitment to continued vigilance ofwomen's rights.

IV. An Evolving Constitutional Jurisprudence

The evolving constitutional jurisprudence emanating from theConstitutional Court suggests a clear break from South Africa'signominious legal past to one forged on principles of equality andnon-discrimination. The two cases discussed below demonstrate athoughtful articulation by the Court of the need to eradicate thevestiges of discrimination against women.68

In 1996 the Constitutional Court considered theconstitutionality of an executive order signed by President NelsonMandela, that sought to pardon "all mothers in prison on 10 May1994, with minor children under the age of [twelve] 12 years. 69

This section of the Presidential Act was challenged by a maleprisoner who argued that the remission of sentences applicableonly to mothers violated the constitutional rights of fathers."0 Thebasis of his challenge was that the provision in question unfairlydiscriminated against him on the grounds of sex or gender, andindirectly against his son because the latter's incarcerated parentwas not female.7' The lower court agreed with the complainant andfound that the Presidential Act discriminated against him on thegrounds of sex and gender. 2 The court also found that thepresumption of unfairness had not been rebutted by the President.73

67 Id. ch. XI, § 182(i)(a), (c).68 See infra notes 69-182 and accompanying text.

69 Hugo v. President of the Republic of S. Afr. & Another, 1996 (4) SALR 1012,

1016 (CC).70 Id.

71 Id. at 1012.72 Id. at 1016.

73 Id.

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After hearing the case on appeal, the Constitutional Court reversedthe lower court's decision." In a lengthy deliberation, the Courtfirst considered the nature of the power granted to the Presidentunder the Interim Constitution to pardon individuals or groups."The Court concluded that the presidential power to pardon isguided by the principle of equality as articulated in theConstitution, even though its origins lie in the royal prerogative."6

The Court undertook a comprehensive journey throughcomparative jurisdictions that have addressed the question ofjudicial review of presidential pardons and concluded that thePresident's decision to grant the pardon to women and not menwas done in the best interests of the child."

Justice Goldstone, writing for the majority, first found that thepresidential pardon discriminated against the complainant."Addressing the presumption of unfairness that is triggered by thediscrimination, the Court evaluated the rationale underlying thePresidential Act in allowing the special remission for mothers ofminor children.79 The Court referenced the special testimony of theDirector of the South African National Council for Child andFamily Welfare on the peculiar role that mothers play in therearing of their children. 0 The Court noted the apparentcontradiction between the reality that mothers bear the greatest

74 Id. at 1017.

75 Id.

76 Id. at 1020.

77 President of the Republic of S. Afr. & Another v. Hugo, 1997 (4) SALR 1, 11-25(CC).

78 Id. at 19.

79 Id. at 20.80 Id. at 21. In her affidavit, the Director stated:

In my opinion, the identification of this special category for remission ofsentence is rationally and reasonably explicable as being in the best interests ofthe children concerned. It is generally accepted that children bond with theirmothers at a very early age and that mothers are the primary nurturers and caregivers of young children. In my experience, there are only a minority of fatherswho are actively involved in nurturing and caring for their children, particularlytheir pre-adolescent children. There are, of course, exceptions to thisgeneralization, but the defacto situation in South Africa today is that mothersare the major custodians and the primary nurturers and care givers of ournation's children.

Id. at 21.

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burden of childrearing and the constitutional imperative thateveryone be treated equally." The Court acknowledged, however,the contemporary situation in South Africa in which mothers havethe greater share of childrearingi2 Distinguishing between theidealized situation in which fathers and mothers equally sharechildrearing functions, and the generalized situation of unequalchildrearing, the Court found that children would substantiallybenefit from the Presidential Act."3

The Court acknowledged that the generalization about womenbearing the greater proportion of the burden of childrearing hashistorically been used to justify the unequal treatment of women.84

In this respect, reference was made to an earlier court decision inSouth Africa in which women were denied entry to the legalprofession in part because of their childrearing responsibilities.85

The Court, however, distinguished between the burden flowingfrom the generalization as opposed to an opportunity such ageneralization may spur. 6

The Constitutional Court considered the likely outcome ifequal treatment were applied and concluded that no public benefitwould be gained by releasing fathers because they were not theprimary caretakers of children. 7 Pointing out that the PresidentialAct provides for individual application for remission of sentencesby male prisoners where special circumstances can be shown, theCourt therefore found the discrimination to be fair.88

81 Id. at 22.

82 Id. at 21.

83 Id. at 25.

84 Id. at 22.

85 Id. (citing Inc. Law Soc'y v. Wookey, 1912 A.D. 523).

86 Id.

87 Id. at 25. The Court also referred to the large numbers of male prisoners asopposed to female prisoners, and to the public outcry that may ensue if large numbers ofmale prisoners were to be released in light of the alarming levels of crime. Id.

88 Id. at 26. Justice Didcott dissented in the judgment, basing his opinion on aprevious Constitutional Court case which held that when no benefit or advantage can bederived from a declaration from the Constitutional Court, that declaration becomes"wholly academic ... exciting no interest but an historical one." Id. at 30 (Didcott, J.,dissenting) (citing J.R. Publ'g (Pty.) Ltd. & Another v. Minister of Safety and Sec. &Others, 1997 (3) SALR 514 (CC)). Justice Didcott believed that because of theabsolutely unique nature of the presidential decree, "its repetition on any similarlyauspicious occasion which may arise some day seems improbable." Id. at 30 (Didcott, J.,

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Justice Kriegler's dissent is worth noting because it appears tocomport with current American equal opportunity jurisprudence. 9

He agreed with the Court's conclusion that the power ofpresidential pardon granted under the clemency powers of theSouth African Constitution is subject to judicial review forconsistency with the equality section of the Constitution." He alsoagreed that the court below made an error in requiring that this becorrected because it violated the Constitution.' He disagreed,however, with the Court's conclusion that the clemency grantedfor mothers of young children was fair.92 In his opinion, thepresidential pardon did not pass constitutional muster. 3 Like themajority, he found that the President violated the equalityprovisions of the Constitution by distinguishing between classes ofparents on the basis of their gender, but, unlike the majority, heconcluded that the presumption of unfairness in "attaching thatdistinction has not been rebutted."94 Justice Kriegler questionedone of the assumptions of the presidential decree that had not beenfully explored, namely, that large numbers of men being releasedfrom prison would shake public confidence.95 He questioned theabsence of empirical data to support this proposition, noting thatthe majority had instead relied on public perceptions about crime. "6

Justice Kriegler insisted that where some rebuttal is providedfor the presumption of unfairness, such rebuttal must bescrutinized thoroughly and must not be "discharged with relativeease."97 He took issue with the rationale that women were theprimary caregivers of young children, stating this generalization to

dissenting). He pointed out that the decree was time-specific and was certainly notdesigned to continue indefinitely. Moreover, the decree would not benefit the fatherwhose child was not under the age of twelve; by the time the matter came to Court, thechild had already celebrated his thirteenth birthday. This rendered the matter moot. Id. at29 (Didcott, J., dissenting).

89 Id. at 31 (Kriegler, J., dissenting).

90 Id. (Kriegler, J., dissenting).

9' Id. (Kriegler, J., dissenting).92 Id. (Kriegler, J., dissenting).

93 Id. (Kriegler, J., dissenting).94 Id. at 32 (Kriegler, J., dissenting).

9- Id. at 34 (Kriegler, J., dissenting).96 Id. (Kriegler, J., dissenting).

97 Id. at 35 (Kriegler, J., dissenting).

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be "a root cause of women's inequality in our society. It is both aresult and a cause of prejudice: a societal attitude which relegateswomen to a subservient, occupationally inferior yet unceasinglyonerous role. It is a relic and feature of the patriarchy which theConstitution so vehemently condemns."98 Justice Krieglerconcluded that a small number of women would benefit from thispardon, but the rebuttal and the rationale for the rebuttal used bythe majority would operate as a "detriment to all South Africanwomen who must continue to labor under the social view that theirplace is in the home."99 The benefit to a few hundred womencannot justify the continued stereotyping of women as the primarycaregivers. "'

Justice O'Regan's concurring opinion is also particularlynoteworthy."' She agreed with the statements made by themajority about the reviewability of the presidential pardon andfocused her comments entirely on the question of whether thediscrimination inherent in the presidential order was unfair.'2 Shefound Justice Kriegler's approach too restrictive, instead notingthat the determination of whether the discrimination was unfairrequired a recognition that "although the long-term goal of ourconstitutional order is equal treatment, insisting upon equaltreatment in circumstances of established inequality may wellresult in the entrenchment of that inequality."'' 3 She noted that

98 Id. at 37 (Kriegler, J., dissenting). Justice Kriegler also made an important point

that nowhere in the presidential decree was it mentioned that the purpose of the decreewas to benefit women, because childless women were not included in the decree. Id.(Kriegler, J., dissenting). The purpose was not to make good past discrimination againstwomen; the purpose of the decree was to benefit children. Id. at 37-38 (Kriegler, J.,dissenting).

99 Id. at 38 (Kriegler, J., dissenting). He also pointed out that this would have theeffect of men internalizing the notion that they have a secondary role in caring for theirchildren. Id. (Kriegler, J., dissenting).

Ioo Id. (Kriegler, J., dissenting)."0' Id. at 40-47 (O'Regan, J., concurring). Justice Mokgoro's concurring opinion

noted specifically that the question before the court was whether, under the Presidentialdecree, only women should be released or no one released. Id. (Mokgoro, J., concurring).In addition, he noted that, taking everything into account, particularly the enormousbenefit to the children to be united with their parent, the limitation in Section 33(1) of theConstitution can be justified by the Presidential decree. Id. (Mokgoro, J., concurring).

102 Id. at 47 (O'Regan, J., concurring).

"03 Id. at 49 (O'Regan, J., concurring).

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there were two factors relevant to the determination of unfairness:an analysis of the group that has suffered discrimination, and the"effect of the discrimination on the interests of those concerned.""MShe evaluated the vulnerability of the group affected by thediscrimination and the particularly invasive nature of thediscrimination. 5 Justice O'Regan noted that even though the goalof equality in the Constitution is very clear, the factual reality inSouth Africa was that women did carry, and would continue tocarry in the foreseeable future, the greater burden ofchildrearing.' 6 She considered this a crucial fact in looking atdiscrimination and determining the unfairness of the distinctionmade.' °7 Referring to Justice Kriegler's proposition that therewould be a profound disadvantage for women in perpetuating thestereotype through the distinction, Justice O'Regan pointed outthat the profound disadvantage did not result from the presidentialdecree but from the inequality which was part of the social fabricof South African society.' 8 She disagreed with Justice Krieglerthat this presidential pardon harmed women. '

09 She also pointedout that any discrimination that men may suffer as a result of thepresidential pardon was not severe."0 Even though fathers weredenied the special remission of sentence by the general decree,they did have the opportunity to make individual applications."'

The majority and concurring opinions in this judgment indicatethe broad contours of equality that the Constitutional Court isprepared to embrace. The Court is concerned not just with formalequality (equal treatment), which can at times lead to inequality,but also with substantive equality, which contextualizes the actualexperiences and reality of women within the formal impedimentsto equality." 2

'04 Id. (O'Regan, J., concurring).

i Id. (O'Regan, J., concurring).106 Id. (O'Regan, J., concurring).

107 Id. (O'Regan, J., concurring).



"o Id. at 50 (O'Regan, J., concurring).

"I Id. (O'Regan, J., concurring)."2 See generally Diana Majury, Strategizing in Equality, 3 WIs. WOMEN'S L.J. 169

(1987) (comparing the "equal treatment" type of equality requiring complete gender-

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In S. v. Baloyi,"3 the Constitutional Court considered theconstitutionality of Section 3(5) of the Prevention of FamilyViolence Act 133 of 1993 (the Act)." 4 The subsection had beendeclared invalid by the Transvaal High Court, which had referredits finding to the Constitutional Court for confirmation."5 The HighCourt's declaration of invalidity was based on its finding that thesubsection under review "place[d] a reverse onus of provingabsence of guilt on a person charged with breach of a familyviolence interdict,""' 6 thus conflicting with the constitutionallyprotected presumption of innocence without compellingconstitutional justification."7 The case presented the opportunityfor the Constitutional Court to confront the vexing issue ofdomestic violence and to balance the need to eradicate domesticviolence against the constitutional rights of accused persons to afair trial."8

The Minister of Justice and the Commission for GenderEquality intervened in the action, challenging the High Court'sdecision on three grounds." 9 First, they felt the "alleged violatorsshould not be considered 'accused persons' entitled to thepresumption of innocence.""'2 Second, even if they were to betreated as such, the sections of the Criminal Procedure Act underreview should not be interpreted as imposing a reverse onus. '

Third, if the proper interpretation of those sections involved theimposition of a reverse onus, "then the limitation of thepresumption of innocence involved could be justified."' 2

neutral treatment of women with a different type of equality that affirmatively recognizesinherent differences between men and women).

"13 2000 (2) SALR 425, 427 (CC).

114 Id.

"15 Id. Although the Prevention of Family Violence Act was soon to be replaced bythe Domestic Violence Act 116 of 1998, the Constitutional Court believed it appropriateto deal with the sections under review because they would soon affect appellant andothers similarly situated. Id. at 428.

116 Id. at 427-28.

''7 Id. at 428.

118 Id.

"19 Id. at 430.120 Id. at 431.

121 Id.

122 Id.

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The complainant, the wife of an army officer, had been grantedan interdict against her husband by a magistrate in Pretoria.'23 Theappellant was ordered not to assault either the complainant or theirchild and not to prevent them from entering or leaving the maritalhome. 24 The appellant ignored the interdict and subsequentlyassaulted and threatened to kill the complainant.'25 She complainedto the police, and after she signed an affidavit, the police arrestedthe appellant and brought him before a magistrate to inquire intothe alleged breach of the interdict.'26

The Court began its discussion by addressing theConstitution's express reference to the problem of domesticviolence.'" Justice Sachs, writing for the majority in a unanimousdecision, embarked on a thoughtful analysis of the need to dealcomprehensively and effectively with the problem of domesticviolence.' 2

' He described the unique "hidden, repetitive character"of domestic violence, its ubiquity in cutting across class, race,culture, and geographic boundaries, and the deleteriousconsequences of its persistence for society.'29 Moreover, becauseof the gender-specific nature of domestic violence, it mirrored andmimicked patriarchal domination in a particularly abhorrentmanner. 130

Justice Sachs explored the banality and perceived inevitabilityof domestic violence and the imperatives on the government tostem it.'3' He contextualized the problem as embedded inpatriarchy and the continued subordination of women.'32 In theirresearch, women's organizations have uncovered "high levels ofdomestic abuse across all sectors of South African society.' 33

123 Id. at 428.

124 Id. at 428-29.

125 Id. at 429.

126 Id.

127 Id. at 432.

128 id. at 431-33.

129 Id. at 431.

130 Id. at 432.

131 Id. at 431-33.132 Id. at 432.

'33 Penelope E. Andrews, Violence Against Women in South Africa: The Role ofCulture and the Limitations of the Law, 8 TEMP. POL. & Civ. RTS. L. REV. 425, 445

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These disturbing numbers confirm the Court's assessment of the"certain normalcy or banality" of domestic violence. '34 In hisanalysis, Justice Sachs detailed the effects of domestic violence onits victims.' 5 Moreover, he noted that the collusion of the state infailing to eliminate domestic violence undermined the state'spromise of gender equality and non-discrimination so clearlyarticulated in the Constitution.' 36 Such inaction on the part of thegovernment also contradicted South Africa's international andregional obligations, including those contained in the GeneralAssembly Declaration on the Elimination of Violence AgainstWomen,'37 the Convention on the Elimination of All Forms ofDiscrimination Against Women,'38 and the African Charter onHuman and Peoples' Rights.'39

Dealing with the constitutional presumption of innocence,'40

Justice Sachs cited a list of Constitutional Court decisions thatreiterated this right. 4 ' He then elaborated on the hybrid(public/private) nature of the Act and analyzed the complicationsthat surface when the private (family) domain intersects with thepublic through the interdict provisions.' 42 The interdict proceedingsin the Act are situated somewhere between family and criminallaw remedies; their purpose is to supplement and enforce those

(1999).134 Id. at 446.

'31 Baloyi, 2000 (2) SALR at 431-33.136 Id. at 431-33 n.22. Of particular relevance to domestic violence is the right in

Section 12(1) of the 1996 Constitution: "Everyone has the right to freedom and securityof the person, which includes the right ... to be free from all forms of violence fromeither public or private sources." S. AFR. CONST. ch. II, § 12(l)(c) (emphasis added).

137 G.A. Res. 48/104, U.N. GAOR, 48th Sess., Supp. No. 49, at 217, U.N. Doc.A/48/629 (1993).

138 G.A. Res. 34/180, supra note 49, at 193.'39 21 I.L.M. 58 (1982). "The Charter was signed by South Africa in 1995 and

ratified in 1996." Baloyi, 2000 (2) SALR at 434 n.30.140 Section 35(3) of the 1996 Constitution provides: "Every accused person has a

right to a fair trial, which includes the right.., to be presumed innocent, to remain silent,and not to testify during the proceedings .... S. AFR. CONST. ch. II, § 35(3)(h).

141 Baloyi, 2000 (2) SALR at 435 (citing Osman & Another v. Att'y-Gen.,Transvaal, 1998 (4) SALR 1224 (CC); Pharbhoo & Others v. Getz NO & Another 1997(4) SALR 1095 (CC); S. v. Coetzee & Others 1997 (3) SALR 527 (CC); S. v. Prinsloo1996 (2) SALR 464 (CC); S. v. Gwadiso 1996 (1) SALR 388 (CC)).

142 Id. at 435-38.

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remedies. 3

Citing feminist scholarship on this issue, Justice Sachs stressedthe unique character of domestic violence as a legal problembecause of the "strange alchemy of violence within intimacy.'"4

Innovative legal skills and methods are therefore essential incombating the problem; to some extent, the interdict provisions ofthe Act create the legal space for such a possibility.15 Theseprovisions require that police officers and other actors in the legalsystem temporarily jettison often negative attitudes about theappropriateness of interfering in private family matters.' 46 In acountry where victims of domestic violence have largelyexperienced the policy as ambivalent to their predicament, theseprovisions are imperative if the attitudinal shift in policingdomestic violence is to occur.'47 The interdict provisions areintended as an "accessible, speedy, simple and effective"process.4 It is a proactive mechanism aimed at preventing furtherviolence without being punitive.' 4

1 In the words of Justice Sachs,"it seeks preventive rather than retributive justice."5 °

Justice Sachs then went on to deal with the three grounds onwhich the Act was challenged.'5 ' The first was whether the allegedviolator was "an accused person" and therefore entitled to thepresumption of innocence. '52 Counsel had argued on the basis ofNel v. Le Roux No and Others'53 that the proceedings under the Actwere "essentially civil in character" and that "the arrested personwas not an accused person entitled to the protection of section

143 Id. at 437-38.

'44 Id. at 436 (citing Joanne Fedler, Lawyering Domestic Violence Through thePrevention of Family Violence Act 1993-An Evaluation After a Year in Operation, 12 S.AFR. L.J. 231, 243 (1995)).

145 Id.146 Id.

147 Id.148 Id.

149 Id.

150 Id.

'51 Id. at 438-44.1 Id. at 438.

153 1996 (3) SALR 562 (CC).

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35(3)(h)."'' " Nel dealt with the procedural consequences of thefailure to testify when a legal duty to do so had been established.'55

Justice Ackermann held that "[t]he recalcitrant examinee who, onrefusing or failing to answer a question, triggers the possibleoperation of the imprisonment provisions of section 189(1) [of theCriminal Procedure Act] is not, in my view, an 'accusedperson."" 56 Justice Ackermann described the imprisonmentprovisions of Section 189 as "nothing more than process in aid."'57

Justice Sachs, however, distinguished Baloyi from Nel bypointing out the punitive nature of Section 6 of the Prevention ofFamily Violence Act, which provided for the imposition of a fineor imprisonment for breach of the interdict provisions.' 8 Whereasthe examinees in Nel carried "the keys of their prison in their ownpockets,"' 59 no such situation existed with violators of the interdictprovisions of the Act.'60 Once the inquiry into the alleged violationof the Act commences, the complainant essentially has abdicatedcontrol of the proceedings to the state. 6' The Court concluded that

'54 Baloyi, 2000 (2) SALR at 438.

1-5 Id. at 439.156 Nel, 1996 (3) SALR at 571.

157 Id. Section 189 of the Criminal Procedure Act provides that:

If any person present at criminal proceedings is required to give evidence atsuch proceedings and refuses to be sworn or to make an affirmation as awitness, or, having been sworn or having made an affirmation as a witness,refuses to answer any question put to him or refuses or fails to produce anybook, paper or document required to be produced by him, the court may in asummary manner enquire into such refusal or failure and, unless the person sorefusing or failing has a just excuse for his refusal or failure, sentence him toimprisonment for a period not exceeding two years or, where the criminalproceedings in question relate to an offence referred to in Part III of Schedule 2,to imprisonment for a period not exceeding five years.

Id. at 571 n.4.158 Baloyi, 2000 (2) SALR at 439.

119 Nel, 1996 (3) SALR at 571.160 Baloyi, 2000 (2) SALR at 439.

161 Id. In Justice Sach's summary:

[T]he objective is not to coerce the will to desist from on-going defiance, but topunish the body for completed violation; and the convicted person carries nokeys in his pocket-indeed there is nothing in the Act to suggest that he can bereleased early if either the complainant so wishes, or the judicial officer sodecides.


the alleged violator of the interdict was an "accused person," andtherefore entitled to the presumptions of innocence. 162

The Court then went on to discuss whether Section 3(5) of thePrevention of Family Violence Act imposed a reverse onus.'6 3

Commenting on the "obscure" nature of the words used in Section3 of the Family Violence Act and Section 170 of the CriminalProcedure Act, Justice Sachs examined three possibleinterpretations of the actions under review."6 They are summarizedin the judgment as interpretations A, B, and C.'65

Interpretation A, emphasizing the word "procedure," allowedonly the importation of the summary procedure, and not a reverseonus.'66 In other words, the protections guaranteed in the CriminalProcedure Act were not suspended; there was therefore no reverseonus interfering with the presumption of innocence.'67 As the Courtpointed out, this interpretation lent itself to the approach mandatedin Section 39(2) of the Constitution: "[w]hen interpreting anylegislation... every court ... must promote the spirit, purport andobjects of the Bill of Rights."'68

Interpretation B embodied the High Court's position thatSection 170 "provides for a procedure which incorporates areverse onus as a central element. ,169

Interpretation C provided for a reverse onus, but only once the"accused person" had proved lack of willfulness on his part.'70 TheCourt articulated interpretation C as follows:

It presupposes that the judicial officer must first besatisfied beyond reasonable doubts that the interdict has infact been breached and that only then is the onus placed onthe alleged violator to prove on a balance of probabilities alack of wilfulness on his part. There is a reverse onus, but

Id.162 Id. at 440.

163 Id.

164 Id.

165 Id.

166 Id.

167 Id.

168 Id.

169 Id. at 441.

170 Id.

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N.C. J. INT'L L. & CoM. REG.

its reach would be restricted because it would be triggeredonly after a breach of the interdict has been proved beyonda reasonable doubt. 7

1

Finding that interpretation C was too "strained,' ' 72 and notpersuaded by the High Court's position (interpretation B), theCourt adopted interpretation A as stating the correct legalposition.' 73 Distinguishing the substantive law question (what mustbe proved) from the procedural law question (how to prove it),Justice Sachs pointed out that Section 170(2) of the CriminalProcedure Act provides for conviction for failure to attend courtproceedings "unless the accused satisfies the court that his failurewas not due to fault on his part."' 74 This shifting of the burden tothe accused renders the issue one of substantive law, and therefore,the procedures of the Criminal Procedure Act are no longerapposite. 5 In short, the presumption of innocence is leftundisturbed.

Justice Sachs referred to the need to provide the legislaturewith latitude in dealing with intransigent social problems that findtheir way to the courts. 176 He did, of course, recognize that whilesuch latitude exists within constitutionally appropriate limits,fairness to the complainant is pre-eminent. 77 This requires that theproceedings are "speedy and dispense with the normal process ofcharge and plea,"'' 8 something akin to a bail hearing.

This judgment follows the Hugo decision in contextualizingthe contemporary reality of South African women. There iswidespread recognition that private violence against women is acause for great concern. Some would argue that such violenceconstitutes a continual violation of women's human rights.'79 The

171 Id.

172 Id.173 Id.

174 Id. at 442.

175 Id.176 Id.

177 Id.

178 Id.

'71 See, e.g., Kenneth Roth, Domestic Violence as an International Human RightsIssue, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES,

supra note 53, at 326.

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Court places its imprimatur on the need to eradicate such violencewithout constraining the constitutional rights of the perpetrators.'8 °

The Court's decision is incontrovertible: there is a general,societal consensus that private violence, indeed any violence,against women is odious, and the state ought to deal with thisproblem aggressively. 8' There is still a large gap, however,between ubiquitous cultural attitudes about women, fueled by aparticular brand of South African masculinity that gives rise tosuch violence, and the laudable statements of the Court. Closingthis gap will require a recognition that the structural and attitudinalimpediments to the "right to be free from private violence" asarticulated in the Constitution"2 can only be eradicated by acombination of governmental assaults which include education,access to resources, and continued vigilance regarding the extentand persistence of violence. The Constitutional Court, at least, isdoing its part, but it needs to be bolstered by other institutionalarrangements that will include both legal and extra-legal measures.

V. Possibilities and Limitations in the Quest forGender Equality

The energies of women's organizations in South Africa havehistorically been directed toward the eradication of apartheid. Forexample, one of the most significant and widespread protests inSouth Africa occurred in 1956 when approximately 20,000 womenmarched in Pretoria to protest the pass law system.' 3 Most of themajor women's organizations have been adjuncts to the liberationmovements or operated with the specific purpose of opposingapartheid. 4 The quest for racial equality dominated the politicaland legal discourse prior to the constitutional negotiations.

The call for emphasis on women's rights or gender equality inSouth Africa surfaced relatively late in the negotiations, but it waspresented to the delegates in an organized and persuasive manner.

180 Baloyi, 2000 (2) SALR at 434.

I Id. at 431-34.

182 S. AFR. CONST. ch. II, § 12(l)(c).

183 T. R. H. DAVENPORT, SOUTH AFRICA: A MODERN HISTORY 384 (1988). Until

1956 women had not been required to carry the passbooks dictated by the migrant laborsystem. Id.

184 BERNSTEIN, supra note 27, at 81.

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The Women's National Coalition lobbied the major politicalparties throughout the constitutional negotiations to addresswomen's issues and to commit to the principle of genderequality.' 5 The Coalition persuaded the drafters of the newConstitution that women's rights needed to be integrally linked tonational reconstruction.' 6 The Coalition also produced a Women'sCharter that set out a broad statement of principles about women'srights.' 7 In a particularly successful strategy aimed at ensuring theactive participation of women in government and in constitution-writing, women activists persuaded the African National Congressto allocate one-third of its parliamentary list to women candidatesbefore the 1994 election.'88 South Africa now has several femaleministers and deputy ministers, and the Speaker of Parliament is awoman. 189

The formal legal landscape appears very favorable for women.As noted earlier, the Constitution embraces an impressive panoplyof rights to ensure that women benefit from the new constitutionaldispensation.'9 ° The enforcement mechanisms in the Constitutionwill also further the goals of equality.'9 ' Most significantly, theConstitutional Court in its judgments has aimed at substantive, asopposed to formal, equality.

The South African government has also passed legislation togive effect to the constitutional mandate of equality. For example,the Domestic Violence Act was passed in 1998 and provides foran aggressive approach to stemming private violence against

185 Catherine Albertyn, Women and the Transition to Democracy, in GENDER AND

THE NEW SOUTH AFRICAN LEGAL ORDER 39, 51-57 (T. W. Bennett et al. eds., 1994). Inthis article, the author assesses "the extent to which [the architects of the new order] tookaccount of the experiences, interests and demands of women in South Africa," andconcludes that women "succeeded in obtaining an equal commitment to race and genderequality in the preamble and the constitutional principles." Id. at 39, 60-61.

186 See id. at 57, 60-61.

187 Id. at 52-53.

188 Danisa E. Baloyi, Apartheid and Identity: Black Women in South Africa, inCONNECTING CROSS CULTURES AND CONTINENTS: BLACK WOMEN SPEAK OUT ONIDENTITY, RACE, AND DEVELOPMENT 39, 43 (Achola 0. Pala ed., 1995).

189 Id.190 S. AFR. CONST. ch. II.

M9' Id. at ch. II, § 38.

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women. 9 2 The Employment Equity Act was passed in 1998 toensure women's equal access to the workplace, ' 93 and theRecognition of Customary Marriages Act was passed in 1998 toprevent the continuing disadvantage that women in customaryunions encounter.194

Despite these impressive gains, however, the struggle forgender equality will require constant attention and continuedvigilance. By initially abdicating the struggle for gender equalityin order to focus on racial equality, women may haveinadvertently relegated the struggle for women's rights to asecondary place on the political agenda. The intersection of raceand gender in the lives of South African women, however, willensure that the issue of women's rights continues to move to thecenter of political discourse and concern.

The alarming patterns of violence against women remain asignificant obstacle to women's equality. Although accuratestatistics are unavailable, both research and anecdotal evidencesuggest that violence against women in South Africa has reachedepidemic proportions.' 95 It has been estimated, for example, thatone in every four adult women is regularly assaulted by herpartner.'96 Sociologist Diana Russell estimates that 750,000 womenare raped every year in South Africa, "making South Africa's rapeincidence the highest in the world-double that of the U.S.A. Onein two South African women are raped in their lifetime, and therape rate for Black women is three times higher than it is forwhites."' 97 Arguably, violence against women has always been aserious problem; the distortions of apartheid merely rendered suchviolence either a private issue (with respect to domesticviolence)' 98 or one confined to black residential areas and therefore

'92 Domestic Violence Act 116 of 1998, 3 BSRSA § 1 et seq. (2000).

193 Employment Equity Act 55 of 1998, 5 BSRSA § I et seq. (2000).'94 Recognition of Customary Marriages Act 120 of 1998, 3 BSRSA § I et seq.

(2000).

'91 See generally HUMAN RIGHTS WATCH WOMEN'S RIGHTS PROJECT, HUMAN

RIGHTS WATCH/AFRICA, VIOLENCE AGAINST WOMEN IN SOUTH AFRICA (1995).196 Jenni Irish, Women and Political Violence, 16 AGENDA 7 (1993).

197 The War Against Women's Bodies, WEEKLY MAIL, Sept. 6-12, 1991, at 12(describing Russell's estimates).

198 HUMAN RIGHTS WATCH WOMEN'S RIGHTS PROJECT, supra note 195, at 44-45, 47,

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of no concern to the police (in the case of rape).'99 The newpolitical atmosphere of transformation has resulted in greaterrecognition of and exposure to the problem of violence againstwomen.

200

Phenomenal resources will be required in order to overcomethe obstacles to gender equality in South Africa, namely, deeplyembedded patriarchal attitudes and widespread violence includingthe violence of poverty as a legacy of colonialism and apartheid.South African women have valuable human resources at theirdisposal. The benefits to women of their engagement in thestruggle against apartheid are numerous. First, the concerns ofwomen are now being pursued in a society already amenable topolitical change. For example, even though women's groups inSouth Africa have existed largely to further the racial struggle,women acquired tremendous organizational and political skills inthe process, skills that could now be harnessed to lobby forwomen's rights. The wealth of women's skills is apparent, for theorganizational structures of the Mass Democratic Movement, tradeunions, civic organizations, and NGOs are replete with the input ofwomen activists. 2

6' Second, it is more difficult for the governmentto ignore the demands of women. Notions of gender equity havebeen incorporated in law and policy, which has in turn generatedan expectation of such gender equity. Third, women's needs areeasier to view as national because women are able to demonstratethe connection between the situation of women and the situation ofSouth African people as a whole. For example, a program of landredistribution has to recognize the role women play in theagricultural sphere; so, too, achievement of access to housingrequires recognition of the large number of female-headedhouseholds. Women's struggles revolve around very basic issues,such as food, shelter, health, education, and physical security. Themore they focus on these issues, the more clearly South Africanwomen activists can present themselves as participants in thelarger effort to rebuild South Africa.

199 Id. at 52, 93-94.200 See generally id.

201 See generally NON-GOVERNMENTAL ORGANISATIONS FOR THE ADVANCEMENT OF

WOMEN, BEIJING CONFERENCE REPORT: 1994 COUNTRY REPORT ON THE STATUS OF

SOUTH AFRICAN WOMEN 12-13 (1994), available at http://www.sn.apc.org/Beijing/status.html.

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South African women have been able to build on theachievements of other women around the globe. The politicalevents in South Africa in the early 1990s occurred on the heels ofa well-orchestrated campaign by international feminists whobrought women's issues from the margins of political and legaldiscourse to a place where women's concerns and priorities wereaccorded formal international recognition. 2 While recognizingvast economic, geographical, cultural, and social differencesbetween women in the developed world and their counterparts inthe developing world, feminist scholars and activists neverthelesshave suggested a collective mobilization of women against maledomination.

In the Western world, a groundswell of scholarship andactivism flowed from significant legal and policy successes towarderadication of discrimination against women. In the last fewdecades, feminist jurisprudence has made an importantcontribution to the field of legal theory. It has succeeded intransforming many areas of domestic law, forcing accommodationof women's experiences. A cursory glance at the areas of criminallaw (particularly rape and domestic battery), family law, and anti-discrimination law reveals the impact of feminist jurisprudence.Although a male bias in the law persists, the situation of certainwomen has improved dramatically in the past few decades, andthis change is a direct result of feminist law reform efforts.

South African women activists were in the happy position oftaking advantage of both the achievements of global feministagitation and the recognition of the limitations of some of theirwork. In the 1990s, when delegates to South Africa'sconstitutional negotiations fought over the details of the rights tobe included in the new Constitution, women activists within SouthAfrica had already managed to organize and successfully influencethe process. They armed themselves with evidence of theimportance of formalizing protection for women.

VI. Conclusion

In just under a decade, South Africans have made remarkable

202 See generally Rebecca J. Cook, Women's International Human Rights Law: The

Way Forward, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL

PERSPECTIVES, supra note 53, at 3.

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steps towards the eradication of racial discrimination. Efforts tosweep away the vestiges of gender discrimination have also beenimpressive. Whereas ten years ago one could argue that theeradication of racial discrimination was paramount, thecontemporary reality reflects that argument to be rather short-sighted, both politically and legally. The purpose of the movementfrom apartheid to democracy requires that attention be paid to allforms of discrimination, wherever they occur and whomever theyaffect. This is a difficult process that requires continued vigilance.As this article has shown, apartheid had a particularly perniciouseffect on women and has left a legacy that will require Herculeanefforts to overcome. The South African government, through itsexpansive Constitution, Bill of Rights, and enabling legislation,has placed the country on firm footing for overcoming that legacy.

from gender apartheid to non-sexism: the pursuit of women

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